Last month, I noted that the “mediator’s proposal” is frequently used by parties as a way to avoid making the final concession in mediation. Wanting to “save face,” the parties often prefer to delegate responsibility for the outcome to the mediator. As a result, they request that the mediator present a final proposal for their mutual, but separate, consideration. Acceptance by both sides results in settlement; rejection by either side results in continued impasse. The process is referred to as being “double-blind” because a party that rejects the proposal is not told by the mediator whether the other side accepted the proposal.
While I believe that a “mediator’s proposal” can be an invaluable tool for reaching resolution, I also believe that it should be used sparingly – i.e., when all else fails. Before the parties resort to a “mediator’s proposal,” it is important that they negotiate fully and in good faith, closing the gap between them as much as possible. Usually, a “mediator’s proposal” should not be considered unless and until the parties are within “striking distance” of one another.
Before requesting that the mediator offer his or her final proposal, it helps to have some idea how the mediator is likely to approach the task. Some mediators tend to “split the baby,” believing that to be the most obvious solution. Other mediators may be more evaluative, presenting a proposal that reflects their subjective opinion of a fair and reasonable outcome. Still others, myself included, do their best to fashion a proposal that is most likely to be accepted by both sides, based upon all of the information obtained during the mediation.
Some commentators have written about possible overuse of the “mediator’s proposal,” suggesting that savvy negotiators may now be designing their negotiating strategy to better position themselves for the inevitable “proposal,” rather than to resolve the actual dispute. While the concern may be genuine, the reality is that all negotiations tend to be competitive in nature, so both sides will seek to gain the upper hand whenever and however they can. That being the case, it seems more likely that both sides may be positioning themselves for a “‘mediator’s proposal,” in which case the playing field remains relatively level.
Whenever possible, it’s preferable for the parties to resolve their dispute through negotiation. When all else fails, however, a carefully conceived and thoughtfully presented “mediator’s proposal” can often be the key to success.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
fjs@fjsmediation.com